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HomeMy WebLinkAboutContract 51825 CITY SECRETA CO TRACT NORM EASEMENT ENCROACHMENT LICENSE AGREEMENT Commercial THIS AGREEMENT is made and entered into by and between THE CITY OF FORT WORTH, a home rule municipal corporation of Tarrant County, Texas ("City"), acting by and through its duly authorized City Manager, Assistant City Manager, or Planning and Development Director, and Westover 360, LLC, a limited liability company ("Licensee"), owner of the real property located at 4208 Highway 360, Fort Worth, Texas 76018 ("Property"), acting by and through its duly authorized manager. RECITALS WHEREAS, Licensee is the owner of certain real property situated in the City of Fort Worth, Tarrant County, Texas, more particularly described in the attached Legal Description of the Property, attached as "Exhibit C" and incorporated herein for all purposes; and WHEREAS, the City has a sanitary sewer and drainage easement (the "Easement") in the Property as shown on the map attached to this Agreement as "Exhibit A," which is incorporated herein for all purposes; and WHEREAS, Licensee desires to construct, place, and/or maintain certain improvements which will encroach in, on, above, or below the City's Easement; and WHEREAS, to accommodate the needs of the Licensee, the City will allow the encroachment under the terms and conditions as set forth in this Agreement. NOW, THEREFORE, the City and Licensee agree as follows: AGREEMENT 1. The City, in consideration of the payment by the Licensee of the fee set out below and covenants and agreements hereinafter contained to be kept and performed by Licensee, hereby grants permission to Licensee to encroach in, on, above, or below and occupy a portion of the City's Easement as described in and at the location shown on Exhibit A, but only to the extent shown thereon, for the purpose of installing a private utility that crosses a city sewer and drainage easement (the "Encroachment"). Upon completion of the Encroachment, Licensee agrees to be responsible for maintaining the Encroachment within the Easement. Licensee shall not expand or otherwise cause the 5 ¢ Encroachment to further infringe in or on City's Easement beyond what is specifically ti described in the exhibit(s) attached hereto. b, ts 0MOAL RECORD FF�P� "4 E went Encroachment Agreement-Commercial CITY SECRETARY pyo c4 FT. 2. All construction, maintenance, or operation in connection with such Encroachment, use, and occupancy shall comply and be performed in strict compliance with this Agreement and with the Charter, Ordinances, and Codes of the City, and in accordance with the directions of the Director of the Transportation and Public Works Department or the Director of the Water Department, or their duly authorized representative. Licensee shall submit all plans and specifications to the applicable Director or duly authorized representative prior to the construction of the Encroachment. Licensee shall not commence construction of the Encroachment until receiving written approval by the Director, which approval shall not be unreasonably conditioned or withheld, but, such approval shall not relieve Licensee of responsibility and liability for concept, design, and computation in the preparation of such plans and specifications. 3. Licensee, at no expense to the City, shall make proper provisions for the relocation and installation of any existing or future utilities affected by such Encroachment, use, and occupancy, including securing the approval and consent of the appropriate utility companies and agencies of the State and its political subdivisions. In the event that any installation, reinstallation, relocation, or repair of any existing or necessary future utility or improvements owned by or constructed by or on behalf of the public or at public expense is made more costly as a direct result of the construction, maintenance, or existence of the Encroachment and use, Licensee shall pay to the City an additional amount equal to such additional cost as reasonably determined by the Director of Transportation and Public Works or the Director of the Water Department, or their duly authorized representative, so long as such amount is commercially reasonable. 4. Upon prior written notice to Licensee, except in the case of an emergency, Licensee agrees that the City may enter and utilize the referenced areas at any time for the purpose of installing, repairing, replacing, or maintaining improvements to its public facilities or utilities necessary for the health, safety, and welfare of the public, or for any other public purpose. The City shall bear no responsibility or liability for any damage or disruption or other adverse consequences resulting from the Encroachment installed by Licensee, but the City will make reasonable efforts to minimize such damage. 5. Upon termination of this Agreement, Licensee shall, at the option of and at no expense to the City, remove the Encroachment and restore the Easement to a condition acceptable to the Director of Transportation and Public Works or the Director of the Water Department, or their duly authorized representative, in accordance with then- existing City specifications. It is understood and agreed to by Licensee that if this Agreement terminates and Licensee fails to remove the Encroachment as directed and Easement Encroachment Agreement-Commercial Page 2 of 12 Revised 12/2018 restore the Easement, Licensee hereby gives the City permission to remove the Encroachment and any supporting structures and assess a lien on the Property for the costs expended by the City in taking such actions. 6. In order to defray all costs of inspection and supervision which the City has incurred or will incur as a result of the construction, maintenance, inspection, or management of the encroachments and uses provided for by this Agreement, Licensee agrees to pay to City at the time this Agreement is requested an application fee of in the sum of Five Hundred Dollars ($500.00). 7. The term of this Agreement shall be for thirty (30) years, commencing on the date this Agreement is executed by the City. However, this Agreement may be terminated upon Licensee's noncompliance with any of the terms of this Agreement. City shall notify Licensee in writing of any noncompliance and if not cured within thirty (30) days, this Agreement shall be deemed terminated, unless such noncompliance is not susceptible to cure within thirty (30) days, in which case this Agreement shall be deemed terminated in the event that Licensee fails to commence and take such reasonable steps as are necessary to remedy the noncompliance within thirty (30) days after written notice specifying the same, or having so commenced, thereafter fails to proceed diligently and with continuity to remedy same. To the extent allowed by law, at the natural expiration of the present thirty-year term, subsequent agreements may be considered at the City's option on substantially the same terms and conditions as the present Agreement. 8. It is further understood and agreed between the parties hereto that the Easement to be used and encroached upon is held by City as trustee for the public; that City exercises such powers over the Easement as have been delegated to it by the Constitution of the State of Texas or by the Texas Legislature; and that City cannot contract away its duty and its legislative power to control the Easement for the use and benefit of the public. It is accordingly agreed that if the governing body of City may at any time during the term hereof determine in its sole discretion to use or cause or permit the Easement to be used for any other public purpose that does not preclude the use of the Encroachment on the Property, including but not being limited to underground, surface, or overhead communication, drainage, sanitary sewerage, transmission of natural gas or electricity, or any other public purpose, whether presently contemplated or not, that the parties agree to negotiate in good faith in order to accommodate the Encroachment and the public purpose. 9. LICENSEE COVENANTS AND AGREES TO INDEMNIFY, AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND CITY, ITS Easement Encroachment Agreement-Commercial Page 3 of 12 Revised 12/2018 OFFICERS, AGENTS, SERVANTS, EMPLOYEES, AND ELECTED OFFICIALS FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF WHATSOEVER HIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE CONSTRUCTION, MAINTENANCE, OCCUPANCY, USE, EXISTENCE, OR LOCATION OF THE ENCROACHMENT AND USES GRANTED HEREUNDER, WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE OF OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, ELECTED OFFICIALS, OR INVITEES OF THE CITY; AND LICENSEE HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR SUCH CLAIMS OR SUITS. LICENSEE SHALL LIKEWISE ASSUME ALL LIABILITY AND RESPONSIBILITY AND SHALL INDEMNIFY CITY FOR ANY AND ALL INJURY OR DAMAGE TO CITY PROPERTY ARISING OUT OF OR IN CONNECTION WITH THE ENCROACHMENTS AND ANY AND ALL ACTS OR OMISSIONS OF LICENSEE, ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES. 10. While this Agreement is in effect, Licensee agrees to furnish City with a Certificate of Insurance naming City as certificate holder as proof that it has secured and paid for a policy of public liability insurance covering all public risks related to the proposed use and occupancy of public property as located and described in Exhibit A. The amounts of such insurance shall be not less than $1,000,000 with the understanding and agreement by Licensee that such insurance amounts may be revised upward in commercially reasonable and appropriate amounts at City's option and that Licensee shall so revise such amounts immediately following notice to Licensee of such requirement. Such insurance policy shall not be canceled or amended without at least thirty (30) days prior written notice to the Building Official of the City. A copy of such Certificate of Insurance is attached as "Exhibit B" and incorporated herein for all purposes. Licensee agrees to submit a similar Certificate of Insurance annually to the City on the anniversary date of the execution of this Agreement. Licensee agrees, binds, and obligates itself and its successors and assigns to maintain and keep in force such public liability insurance at all times during the term of this Agreement and until the removal of the Encroachment and the cleaning and restoration of the Easement. All insurance coverage required herein shall include coverage of all Licensee's contractors and subcontractors. Easement Encroachment Agreement-Commercial Page 4 of 12 Revised 12/2018 11. Licensee agrees to deposit with the City when this Agreement is executed a sufficient sum of money to be used to pay necessary fees to record this Agreement in the real property records of Tarrant County, Texas. After being recorded, the original shall be returned to the City Secretary of the City of Fort Worth. 12. Licensee agrees to comply fully with all applicable federal, state, and local laws, statutes, ordinances, codes, and regulations in connection with the construction, operation, and maintenance of the Encroachment and uses. 13. Licensee agrees to pay promptly when due all fees, taxes, or rentals provided for by this Agreement or by any federal, state, or local statute, law, or regulation. 14. Licensee covenants and agrees that it shall operate hereunder as an independent contractor as to all rights and privileges granted hereunder and not as an officer, agent, servant, or employee of City, and Licensee shall have exclusive control of and the exclusive right to control the details of its operations, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, licensees, and invitees. The doctrine of respondeat superior shall not apply as between City and Licensee, its officers, agents, servants, employees, contractors, and subcontractors, and nothing herein shall be construed as creating a partnership or joint enterprise between City and Licensee. 15. Licensee agrees and acknowledges that this Agreement is solely for the purpose of permitting Licensee to construct, maintain, and locate the Encroachment over or within the Easement and is not a conveyance of any right, title, or interest in or to the Easement, nor is it meant to convey any right to use or occupy property in which a third-party may have an interest. Licensee agrees that it will obtain all necessary permissions before occupying such property. 16. In any action brought by the City for the enforcement of the obligations of the Licensee, in the event that Licensee is found to be in default of the terms of this Agreement, the City shall be entitled to recover interest and reasonable attorneys' fees. Easement Encroachment Agreement-Commercial Page 5 of 12 Revised 12/2018 17. The parties agree that the duties and obligations contained in Section 5 shall survive the termination of this Agreement. 18. Licensee covenants and agrees that it will not assign all or any of its rights, privileges, or duties under this Agreement without the written approval of the City, and any attempted assignment without such written approval shall be void. In the event Licensee conveys the Property, Licensee may assign all of its rights and obligations under this Agreement to the new owner of the Property, and Licensee shall be deemed released from its duties and obligations hereunder upon City's approval in writing of such assignment, which approval shall not be unreasonably conditioned or withheld. Foreclosure by a secured lender of Licensee or assignment to a secured lender by Licensee in the event of default or otherwise shall not require City approval provided that said lender notifies City in writing within sixty (60) days of such foreclosure or assignment and assumes all of Licensee's rights and obligations hereunder. However, no change of ownership due to foreclosure or assignment to any secured lender of Licensee shall be effective as to City unless and until written notice of such foreclosure or assignment is provided to City. 19. Any cause of action for breach of this Agreement shall be brought in Tarrant County, Texas. This Agreement shall be governed by the laws of the State of Texas. 20. This Agreement shall be binding upon the parties hereto and their successors and assigns. 21. This Agreement may be executed in multiple counterparts, each of which shall be considered an original, but all of which shall constitute one instrument. [SIGNATURES APPEAR ON FOLLOWING PAGE] Easement Encroachment Agreement-Commercial Page 6 of 12 Revised 12/2018 City: Licensee: CITY TWO H Westover 360,LLC By: By: Randle Harwood, Director Name: Mack House Planning & Devel pmen Title: Manager Date: Date: l Z Yom/ By: Name: Title: Date: F 0 Approved As To Form and Legality ATTEST: pp g y � T U i:E Trey Qualls,Assistant City Attorney City Se­cretky .• X��� Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reportin requirements. Janie . Morales Development Manager OFFICIAL RECORD CITY SECRETARY Easement Encroachment Agreement-Commercial FT, W�, ITX 111 11 ' STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Randle Harwood, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, as the act and deed of the City of Fort Worth, and in the capacity therein stated. GIVEN LFNDER MY LAND AND SEAL OF OFFICE this day of 4<J , 20_. jNor37Publ in and o he State of Texas �.�"ava'��. JENNIFER LOUISE EZERNACK Notary Public,state of Texas 9' '-;QZz Comm. Expires 03-01-2020 II,0' Notary ID 130561630 After recording return to: Planning& Development Development Coordination Office 200 Texas Street Fort Worth, Texas 76102 OFFOCIAL RECORD CITY SECRETARY Easement Encroachment Agreement-Commercial FT WORT' 12 Revised'12 18 STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Mack House, Manager (Title) known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he or she executed the same for the purposes and consideration therein expressed, as the act and deed of Westover 360 LLC, a limited liability company (entity type), and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 24th day of January, 2019. j p4anr° Y RITA A.SINGLETON of Nota -15-Public in and for the ' *( * Notary public,State 5-2002020 Texas A : ,�b Comm.Expires 12 ire State of TAX A 5 {,r Notary iU 344634-6 OFFICIAL RECORD Easement Encroachment Agreement-Commercial CITY SEC; 1f2 FT. Wb 1 � 8 EXHIBIT A Map of Easement and Encroachment Easement Encroachment Agreement-Commercial Page 10 of 12 Revised 12/2018 Exhibit A o w � � o W N a L J W Q N of I I ^ 3 oN ~ z $ N M a_ ^ x ry r ao I Oi 1IIIVIIII W 4 O I wfz Z Z C) N M Y N .rltl;5, LD U Lu 00 Q Q U a V) I h+� W in LU . �/ :2W Q � Q d p ':� > w LU Z N Q Q ow I LLJ www Z0 NN I >- W H VU J Ha w of LQ N LLJ Q w N a- (ZvV) I p V) � Z I w I X QO 10 9#!il ilk!! — — — — — — — — —N J- + — — — — — — - "5 Ex.48"SD Ex.48"SDk8. D Ex.r8"SD Ex.48"SD Ex.48"SD .SNI Ex.48"SD -I- - - - - - - - - x3 SS..B' SS..B'x SS..B'x3 .,8'x3 Ex. 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X3 1 103MMOJ o d1 �t i i i i i i i i • 1 1j C g Exhibit A VICINITY MAP 183 Lu a t� SOVEREIGN 360 CENTERPORT ADDITION LOT 213-1,BLOCK 102 INST.D218299123 CEN E STATION Z = O.P.R.T.C.T. 0 0 Z ENCROACHMENT SITE a Q AREA OO CQ 0 Lu W TRINITY m LOCATION MAP NOT TO SCALE Project No.104-18-006 Date:11/15/20181 Page 1 of 3 Drawn by:SA I Checked by:MD2 "'OB B ANN I STE R ENCROACHMENT AGREEMENT- VICINITY MAP PORTION OF LOT 2R-1, BLOCK 102,CENTREPORT ADDITION OUT OF THE VICENT J. HUTTON SURVEY,ABSTRACT NO.681 240 North Mitchell Road I Mansfield,Tx 76063 1817.842.2094 1 817.842.2095 fax CITY OF FORT WORTH,TARRANT COUNTY,TEXAS TBPLS REGISTRATION NO.10193823 EXHIBIT B Certificate of Insurance Easement Encroachment Agreement-Commercial Page 1 1 of 12 Revised 12/2018 Exhibit B Client#:85066 18WESTOGRO DATE(MM/DD/YYYY) ACORDT. CERTIFICATE OF LIABILITY INSURANCE 1 1/14/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement A statement on this certificate does not confer any rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Marsh Wortham PHONE g17 336-3030 FAX 817 336-8257 A/C No Ext: A/C,No 1600 West Seventh Street E-MAIL ADDRESS: Fort Worth,TX 76102-2505 INSURER(S)AFFORDING COVERAGE NAIC# INSURER A:Cincinnati Insurance Company 10677 INSURED INSURER B: The Westover Group,L.P. INSURER C: 556 8th Ave. Fort Worth,TX 76104 INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS_ INSR TYPE OF INSURANCE ADDLSUBR POLICY EFF POLICY EXP LIMITS LTR INR POLICY NUMBER MM/DD/YYYY MWDD A X COMMERCIAL GENERAL LIABILITY ENP0036706 9/08/2018 09/0812019 POE' EEE $1,000,000 CLAIMS-MADE OCCUR PREMISESOEao.'T nc $500,000 MED EXP(Any one person) $10,000 PERSONAL✓?<ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $3,000,000 PRO- PRODUCTS-COMP/OP AGG $3 000,000 POLICY JECT 1:1 LOC , OTHER: $ MBINED SINGLE LIMIT A AUTOMOBILE LIABILITY EBA0036706 9/08/2018 09/08/201 COEa nt1, 000,000 accide ANY AUTO BODILY INJURY(Per person) $ OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS X AUTOS ONLY X NON-OWNED PROPcdERTY DAMAGE $ AUTOS ONLY Per.adent $ A X UMBRELLA LIAB X OCCUR ENP0036706 D910812018 09/0812019 EACH OCCURRENCE $1 000 000 EXCESS LIAR CLAIMS-MADE AGGREGATE s3:000"000 DED RETENTION$ $ WORKERS COMPENSATION PEROTH- AND EMPLOYERS'LIABILITY Y/N ATT R ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? ❑ NIA (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT 1$ DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached If more space is required) GA472 10/01 -Automatic Additional Insured When Required By Written Contract With You AA4171 11/05-Additional Insured by Contract Named Insured Is Continued To Read:Westover 360,LLC CERTIFICATE HOLDER CANCELLATION City of Fort Worth SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Planning$Development-CFA Office PN18-00172 ACCORDANCE WITH THE POLICY PROVISIONS. 200 Texas Street Fort Worth,TX 76102 AUTHORIZED REPRESENTATIVE Mesh 160ftm, s dvlsbn ofMesh USA Inc ©1888-2015 ACORD CORPORATION.All rights reserved. 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